Metropolitan Bd. of Zoning Appeals of Marion County v. Shell Oil Co., No. 2-878A305

Docket NºNo. 2-878A305
Citation395 N.E.2d 1283, 182 Ind.App. 604
Case DateOctober 29, 1979
CourtCourt of Appeals of Indiana

Page 1283

395 N.E.2d 1283
182 Ind.App. 604
The METROPOLITAN BOARD OF ZONING APPEALS OF MARION COUNTY,
Indiana, Division One, F. Ross Vogelsesang, as Administrator
of Planning and Zoning Department, Department of
Metropolitan Development, Marion County, Indiana, and not
Individually, Frank J. Russell, Chairman, Rose Mary Clarke,
Secretary to said Board of Zoning Appeals, in their capacity
as such officers and not Individually, Appellants (Defendants below),
v.
SHELL OIL COMPANY, a corporation, Appellee (Plaintiff below).
No. 2-878A305.
Court of Appeals of Indiana, Fourth District.
Oct. 29, 1979.

David F. Rees, Indianapolis, for appellants.

Page 1284

James L. Tuohy, John Q. Herrin, Wood, Tuohy, Gleason & Mercer, Indianapolis, for appellee.

[182 Ind.App. 605] MILLER, Presiding Judge.

This is an appeal by the Metropolitan Board of Zoning Appeals of Marion County, Indiana (Board), from the trial court's order directing the Board to issue Shell Oil Company (Shell) an improvement location permit. We affirm.

Shell is the owner of a gasoline service station located at 7103 N. Michigan Road, Indianapolis, Indiana. Shell filed an application for an improvement location permit to erect two canopies over two gasoline pump islands in the front yard of said real estate. Initially, the Department of Metropolitan Development (Department) denied the application on the basis that the Zoning Ordinance of Marion County (Ordinance) did not contemplate canopies of the size Shell proposed to construct. Shell appealed to the Board contending the Ordinance expressly permitted construction of canopies in the required front yard of gasoline service stations and Shell was therefore entitled as a matter of right to the issuance of a permit to erect the proposed canopies. The Board, after hearing evidence thereon, upheld the denial of the requested permit.

Shell filed a petition for certiorari in the Superior Court of Marion County for review and said court determined the Board's action was illegal and contrary to law and directed the Board to issue Shell the requested permit. Thereafter, the Board brought this appeal.

The Board raises the following issue on appeal:

Did the Board have authority to impose limitations on the size of canopies for which it would issue an improvement location permit?

The Board in its Appellant's Brief contends the Department and the Board, by reason of their expertise in land use problems, had the power and authority to construe the ordinance in question, apply their expertise and exercise their discretion in the granting or denying of improvement location permits. Hence, the Board urges, it was within their discretion to interpret the Ordinance as contemplating canopies of a size sufficient to cover pump equipment only for its protection and not those of the dimensions Shell proposed to construct. The Board makes this contention admitting there is neither specific statutory authority nor specific provision in the Ordinance granting such discretionary [182 Ind.App. 606] power in the case of issuing improvement location permits as opposed to such authority vested in them in reviewing a request for a zoning variance. However, the Board directs our attention to Ordinance No. 39-1971 from which it claims implied authority to exercise their discretion in issuing such permits.

Ordinance No. 39-1971 provides in pertinent part as follows:

"No structure shall be located, erected, altered or repaired .. . upon any land within Marion County, Indiana, until an improvement location permit herefor has been applied for by the owner . . . thereof and issued by the Metropolitan Development Commission of Marion County, Indiana.

(N)o permit shall be issued for any structure or any use Unless the use, character and location thereof shall be in conformity with the provisions of all applicable zoning ordinances, thoroughfare ordinances and other ordinances relating to land use, including this ordinance." 1

(Our emphasis.)

It is well established that a municipality may require permits be obtained from some board or public officer as a prerequisite to the erection of buildings or similar structures. 101 C.J.S. Zoning § 219, p. 978. Statutory authority for the above quoted ordinance is found in Ind.Code 18-7-2-57 which provides:

Page 1285

"As a part of a zoning ordinance, . . . the county council may require the procurement of an improvement location permit for the erection, alteration, or repair of any structure . . . .

If such a provision is adopted, a structure shall not be located and a permit shall not be issued Unless the use, character, and location of the structure is in conformity with the provisions of the applicable ordinances. All such improvement location and occupancy permits shall be issued by the metropolitan planning department: Provided, That the authority to issue such permits may be delegated by the metropolitan plan commission to any city or county officer or officers."

(Our emphasis.)

[182 Ind.App. 607] In the issuance of permits the board or public official must follow the provisions of the zoning ordinance. Application of Rea Construction Co. (1968), 272 N.C. 715, 158 S.E.2d 887; See also: 13 Am.Jur.2d, Building and Construction Contracts § 8, p. 272. Where the applicant meets all the requirements of the ordinance he is entitled to the issuance of...

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15 practice notes
  • Field v. Area Plan Commission of Grant County, Ind., No. 2-180A11
    • United States
    • Indiana Court of Appeals of Indiana
    • June 17, 1981
    ...(1961), 242 Ind. 253, 177 N.E.2d 34; Metropolitan Board of Zoning Appeals of Marion County v. Shell Oil Co. (1979) Ind.App., 395 N.E.2d 1283, we initially apply the rule requiring an interpretation in accord with the municipality's clear intent as manifested by the plain wording of the ordi......
  • Ayers v. Porter County Plan Com'n, No. 64A04-8701-CV-22
    • United States
    • Indiana Court of Appeals of Indiana
    • October 5, 1989
    ...the court held it was permitted as of right. In Metropolitan Board of Zoning Appeals of Marion County v. Shell Oil Co. (1979), Ind.App., 182 Ind.App. 604, 395 N.E.2d 1283, a gasoline service station applied for an improvement location permit to erect two canopies over gasoline pump islands.......
  • Woods v. Brown County Plan Com'n, No. 1-682A150
    • United States
    • Indiana Court of Appeals of Indiana
    • March 22, 1983
    ...are to be applied in construing ordinances. Metropolitan Board of Zoning Appeals, etc. v. Shell Oil Company, (1979) Ind.App., 395 N.E.2d 1283. It is fundamental in statutory construction that the statute should be construed so as to ascertain and give effect to the intention of the legislat......
  • Town of Merrillville Bd. of Zoning Appeals v. Public Storage, Inc., No. 45A04-8911-CV-495
    • United States
    • Indiana Court of Appeals of Indiana
    • March 28, 1991
    ...requirements, and the board must issue the exception. Metropolitan Bd. of Zoning Appeals of Marion Cty. v. Shell Oil Co. (1979), 182 Ind.App. 604, 395 N.E.2d 1283. See also Board of Zoning Appeals of Elkhart Cty. v. New Testament Bible Church (1980), Ind.App., 411 N.E.2d 681 (board could no......
  • Request a trial to view additional results
15 cases
  • Field v. Area Plan Commission of Grant County, Ind., No. 2-180A11
    • United States
    • Indiana Court of Appeals of Indiana
    • June 17, 1981
    ...(1961), 242 Ind. 253, 177 N.E.2d 34; Metropolitan Board of Zoning Appeals of Marion County v. Shell Oil Co. (1979) Ind.App., 395 N.E.2d 1283, we initially apply the rule requiring an interpretation in accord with the municipality's clear intent as manifested by the plain wording of the ordi......
  • Ayers v. Porter County Plan Com'n, No. 64A04-8701-CV-22
    • United States
    • Indiana Court of Appeals of Indiana
    • October 5, 1989
    ...the court held it was permitted as of right. In Metropolitan Board of Zoning Appeals of Marion County v. Shell Oil Co. (1979), Ind.App., 182 Ind.App. 604, 395 N.E.2d 1283, a gasoline service station applied for an improvement location permit to erect two canopies over gasoline pump islands.......
  • Town of Merrillville Bd. of Zoning Appeals v. Public Storage, Inc., No. 45A04-8911-CV-495
    • United States
    • Indiana Court of Appeals of Indiana
    • March 28, 1991
    ...requirements, and the board must issue the exception. Metropolitan Bd. of Zoning Appeals of Marion Cty. v. Shell Oil Co. (1979), 182 Ind.App. 604, 395 N.E.2d 1283. See also Board of Zoning Appeals of Elkhart Cty. v. New Testament Bible Church (1980), Ind.App., 411 N.E.2d 681 (board could no......
  • Woods v. Brown County Plan Com'n, No. 1-682A150
    • United States
    • Indiana Court of Appeals of Indiana
    • March 22, 1983
    ...are to be applied in construing ordinances. Metropolitan Board of Zoning Appeals, etc. v. Shell Oil Company, (1979) Ind.App., 395 N.E.2d 1283. It is fundamental in statutory construction that the statute should be construed so as to ascertain and give effect to the intention of the legislat......
  • Request a trial to view additional results

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